Orzeczenie: N.S v Secretary of State for the Home Department

Introduction
The status of human rights within the EU legal order has dramatically changed consequently with the EU’s transformation from a purely economically orientated institution to a more and more powerful supranational organization with political and social aims.
Now human rights concerns occupy a central position in EU’s policies. 1)
Thus, the human rights provisions as expressing values shared by all Member States and creating a common basis were designated to become one of the centrepieces of the EU Constitutional Treaty.  The Charter of Fundamental Rights was incorporated as the whole as Part II of the three-part Constitutional Treaty.

This Charter, proclaimed solemnly by the Parliament, the Council and the Commission and politically approved by the Member States at the Nice European Council in December 2000, constitutes codification of fundamental rights, which are effective in the EU. 2)  It would become binding with the Constitutional Treaty entering into force.
But the Treaty was not ratified and the Charter also has no binding character, when negotiations for the Lisbon Treaty started and with this a number of concerns relating the legal status of the Charter rose.

The result was a compromise – the text of the Charter was not incorporated in the new Lisbon Treaty, but Art.6 TEU refers to it and gives it a legal effect. The wording of Art.6 (1) provides that now the Charter has “the same value as the Treaties”.
The consequence of this is that its regulations are potentially enforceable in the national courts, when Union law issues are at stake, as well as before the ECJ. 3)
With this legal step a discussion relating the possibility to use the claim of fundamental right’s violation to enforce the state to grant legal positions, which are contrary to its public policy but covered by the Charter of Fundamental Rights, was stared off, especially in Poland and the UK.

For the Polish government the main objections were that entering into force of the Charter of Fundamental Rights may lead to an obligation to change legislation concerning issues of public morality like abortion, euthanasia and partnerships of the same sex.4)  The British argued for quite different reasons against an unlimited legal force of the Charter. The UK was mostly worried about Chapter IV of the Charter concerning social rights and its potential force to amend British labour law, which becomes very obvious in Art.1 (2) of the Protocol. 5)
The main task of both governments became seeking for a possibility to limit the Charter’s power, what ended up with what now is called the “British-Polish-Protocol.”

Content
Protocol No 30 “On the Application of the Charter of Fundamental Rights of the European Union to Poland and The United Kingdom” to the Lisbon Treaty comprises two Articles.
Art. 1 (1)declares that the “The Charter does not extend the ability of the Court of Justice of the European Union, or any court or tribunal of Poland or of the United Kingdom, to find that the laws, regulations or administrative provisions, practices or action of Poland or of the United Kingdom are inconsistent with the fundamental rights, freedoms and principles that it reaffirms.”

In the second section of Art.1 it is added that “for the avoidance of doubt, nothing in Title IV of the Charter creates justiciable rights applicable to Poland or the United Kingdom except in so far as Poland or the United Kingdom has provided for such rights in its national law.”
Thus Art.1 should be understood as stipulating that there shall be no extension of the ECJ’s ability to review acts of the Member States within the scope of EU law for compliance with general principles of EU law and pointing out that Title IV of the Charter  have not created any new justiciable rights in Poland or the UK. 6)
The second Article of the Protocol states that “To the extent that a provision of the Charter refers to national laws and practices, it shall only apply to Poland or the United Kingdom to the extent that the rights or principles that it contains are recognised in the law or practice of Poland or of the United Kingdom.”

Both Articles concentrate on claiming that the incorporation of the Charter by reference in Art.6 (1) TEU does not create any new rights for Polish and British as these, which are already part of Poland’s and UK’s legal order. They also shall prevent an extensive interpretation of the established rights due to the Charter’s impact.
While stating this it has to be pointed out that both Articles deal with the situation when only national law has to be applied and not the state of affairs when Community law or deeds of EU-organs are at stake . 7)


Interpretation and legal force
Following the reasoning of the Protocol’s provision there was a need to create this additional document to assert that the Lisbon Treaty will not adopt a new situation for Poles and the British concerning fundamental rights.
In other words, the idea which seems to be behind, was, although there is not any ban explicitly, simply to forbid the ECJ and national courts to apply the Charter effectively in Poland and UK.  8)

In succession if this ban shall be regarded as effective, the protocol has to be deemed as a real opt-out for both countries, if not the question about the intention of this paper arises.
The fist issue to be analysed is the legal nature of this document.
As being a Protocol to the Charter it became, with entering into force of the Lisbon Treaty, via Art.6 (1) TEU, exactly as the Charter itself, primary law.

But this does not answer the question if its content changes the situation of Poland and the UK in the matter at issue compared to the other Member States or if it constitutes only declaratory clarifications. To the latter and with this to a purely political character of this document point the declarations in the beginning of the protocol. 9)
The 8th reason justifying the document refers to “the wish of Poland and the United Kingdom to clarify aspects of the application of the Charter”.  10)

Also in the 9th point of the declaration clarification seems to centre11) , while on the contrary the 11th reaffirms “that this Protocol is without prejudice to the application of the Charter to other Member States” 12) which would be redundant if no changes resulted from this.
The Articles itself also appear to be contradictory in their nature.
Art.1 (1) denies the ECJ an extension to judge over the compliance of domestic legal acts, practices and actions of Poland and UK with the Charter. The emphasis of this provision lays on the extension of the ECJ’s competences. While comparing this with the declaration of Art.51 (1) CFR, which outlines the field of the Charter’s application, the first Article of the Protocol somehow seems to be of auxiliary character.

Art. 51 (1) CFR claims that “[t]he provisions of this Charter are addressed to the institutions, bodies, offices and agencies of the Union […] and to the Member States only when they are implementing Union law.” 13). Art.1 (1) of the Protocol however seems to contain a negative definition of the, in Art. 51 (1) used, phrase of Union law implementation: Union’s authorities and Member States are implementing Union law, when they do not apply national laws, regulations or administrative provisions or refer to national practices or actions. If they do so, the ECJ has no jurisdiction.

Reading Art.1 (1) of the Protocol in this way it shall be regarded as having only a declaratory character comprising a narrow interpretation of the concept of Union law implementation, which is now in accordance with the prevailing opinion. 14)
This position is taken by the Munich professor dr. Franz Josef Linder.  15)
But he claims, that the legal effectiveness of this provision can change very quickly, when the ECJ starts to understand the item of implementation Union law in a more broader sense than at this time, what would lead to a stronger binding force of the Charter upon the Member States. Such an extension via the wording of Art. 51 (1) of the Charter would be for Poland and the UK, due to Art. 1(1) of the Protocol, not binding 16). In this way, according to Lindner, the provision would gain a constitutive effect.

In the second section of Art.(1) of the Protocol, he sees only a declaration. The main argument put forward by him to justify this opinion is the wording of Art.1 (2) of the Protocol, which starts with the formulation: “In particular, and for the avoidance of doubt […]”. To his mind this phrase shows the independence of the second section of the article from the fist one. Its text relates to Art.51(1) CFR and should be analyzed only in connection with it. Lindner reads this provision in the light of the ambiguity concerning social rights and points out that Art.1 (2), as well as Art.2 of the Protocol, shall be considered as construction guidelines in respect to Art.27 et seq CFR. In his view, they are a consequence of the fact that the Charter does not clearly distinguish between rights, principles and competences and he sees in them a welcomed clearness due to stressing with the wording that the field of application drafted in Art.51(1) CFR also applies to the provisions in Title IV.

By using the words “and for avoidance of doubt” Art.1(2) of the Protocol gains also impact on the other Member States when interpreting Art.27-38 CFR.
Summing up, Lindner regards both Articles of the Protocol having  a purely declarative character and can be seen as construction guidelines, while Art.1(1), when the ECJ changes its understanding of implementation of EU law to a more broader one, this provision could get constitutive impact.

For Linder the legal nature of the Protocol is, at the status quo, a declarative one, which does not amend in any way the situation of Poland and the UK in relation to the Charter, but which is to be considered as support of understanding and construction of the Charter’s provisions.
He underlines the Protocol’s relevance, but not as an opt-out, rather as a clarification.
In fact, the same attitude towards the Protocol is taken by Ingolf Pernice, who states, that the Protocol “can hardly be understood as […] an opt-out” 17) “and that it “[…] contains clarifications but not […] any real reservations in respect of the Charter” .18)
The second position, which can be found in literature, claims as well as Lindner and Pernice , that Art.1(1) and Art.(2) of the Protocol are declaratory, but its representatives state, that Art.1 (2) contains a real opt-out from the rights outlined in Title IV .19)
On the other hand, Jan Jirásek reveals, that Art.1(2), especially when examined in connection with first Declaration by the Republic of Poland which concerns the Protocol 20), shall be considered as having “just an illustrative or explanatory character” 21).

Art.2 of the Protocol is, according to him, also of purely declaratory nature. This provision to his mind “only repeats similar provisions contained in the Charter to all Member States (art. 52 pars.4 and 6)” 22). Contrariwise, he predicates that, while not allowing the said courts to find out that some Polish or UK legal rule are incompatible with the Charter, Art.1 (1) of the Protocol simply forbids the ECJ and national courts to apply the Charter effectively in Poland and UK and by this measure establishes a ban on applying the Charter. Thus, the Protocol is, in the eyes of Jirásek, a real opt-out.

Nevertheless, he argues, that this does not necessary change the situation relating to fundamental rights in these both states from the practical point of view.
Of course, these Member States will not be formally bound by the Charter provision, but the ECJ can, so Jirásek, easily overcome them by using another instrument to reach the same effect – its own case law. In its decisions the ECJ made clear that the protection of fundamental rights is a general principle of EU law.23)  This has now even been confirmed by Art.6 (3) TEU which gives the ECJ the possibility to continue in protecting the human and fundamental rights through the case law independently on the provisions of the Charter. According to Jirásek, the ECJ is even able, by exposing that the protection of human rights is also one of the general principles of the EU law and this one is not limited like the protection of fundamental rights by Art. 51 and Art.52 CFR, to go beyond the Charter. Additionally, the ECJ can, so Jirásek, use the argument of the protection of the single market and the four freedoms: “Thus if some human rights (particularly the solidarity rights) are more restricted in one Member State than in others, the ECJ could regard is as hindrance to the single market or infringement of the said freedoms of the fundamental Treaties without any regard to the Charter. Thus, it does not need to be hard for the ECJ to apply human rights contained in the Charter through its case law – even through the United Kingdom and Poland.”  24)

This point of view, that, irrespective of the actually legal nature of the Protocol and its legal institution as an opt-out, it will have no or not a significant effect in practice, shall be regarded as the one, which was prevailing. 25)
But there were also some concerns relating the court practice. It was clear that ruling in a way which would show that the ECJ regards both, Poland and the UK to be indirectly bound by the Charter, will be a political statement and Luxembourg has to find courage to rule in this sense 26). Hence, in relation to lower instance courts, there was even the feat that they will, by invoking principles stemming from the Polish-British-Protocol, simply refuse to apply or consider the Charter .27)

In this respect the judgment of the ECJ in the case N.S. v. Secretary of State for the Home Department from the 21th December 2011 is a very important one .28)
In this case the Afghan national N.S. claimed for asylum in UK, after travelling through other Member States including Greece.  The Secretary of State for its site requested Greece to take charge of the asylum application, pursuant to Art. 17 of the Dublin II Regulation29) . But N.S. argues that the Secretary of State should make use of its discretionary power under Art.3 (2) of the Dublin II Regulation to accept responsibility for his asylum request, because otherwise there will be a risk, due to the situation in which asylum seeker in Greece is confronted, that his fundamental rights under will be infringed. One of the preliminary questions asked by the Court of Appeal (England and Wales) was, if the fact that the UK is
part of the Polish-British-Protocol does have any impact on this situation.

The answer given by the Court confirms in fact, at least, partially even in a very obvious way, the positions taken before by many voices from the literature.
The ECJ rules, that the Protocol does not call into question the applicability of the Charter in Poland or the UK as is stated in the recitals of its preamble.
Further it rules that Art.1 (1) of the Protocol has to be regarded as explaining Art.51 of the Charter “with regard to the scope thereof and does not intend to exempt the Republic of Poland or the United Kingdom from the obligation to comply with the provisions of the Charter or to prevent a court of one of those Member States from ensuring compliance with those provisions” .30)

In the end the ECJ points out that in this case the Protocol does not have to be taken into account.

With this judgment the ECJ made it pretty clear that it will find courage to follow its precepts concerning the protection of fundamental rights worked out in its case law, also in respect to Poland and the UK.
Moreover, this judgment contains the first statement of the ECJ in terms of the interpretation of the Protocol and the presented one matches exactly the expectations made by the literature.

Summarizing, it can be detected that this decision of the Court confirms the prevailing opinion concerning the Protocol, at least in its parts.
It verifies that Art.1 (1) of the Protocol has only a declaratory character and that there are no clues to be found which would lead to the conclusion that the Charter is not applicable in Poland and the UK. The idea of Art.1 (1) of the Protocol banning the application of the Charter in both Member States is with this decision not longer tenable.
With this the ECJ proves the point that there big chances that there will be no significant practical effects of this document than a few lines more in judgments.

Conclusion
To sum up, it can be said that yet not completely united opinion in terms of the legal nature of the Protocol is established in the literature – some hold the opinion that the whole Protocol is only of declaratory character, others declare certain parts of its having constitutively the other declaratory effect, and there are also some who see in it a real opt-out, which forbids the ECJ and national courts to apply the Charter effectively in Poland and the UK.
But the whole literature agrees upon the assumption that the practical effect of these provisions will be not significant.
The ruling of the ECJ in the case N.S. v. Secretary of State for the Home Department as of the 21th of December confirms this. 31)